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We Must Immediately Oppose the Nomination of Brett Kavanaugh to the United States Supreme Court

Edward Tabash



I. Kennedy's Retirement from the Supreme Court Puts Atheists in Grave Jeopardy

The president has nominated Judge Brett Kavanaugh to the United States Supreme Court to replace retiring Justice Anthony Kennedy. Full legal equality for nonbelievers hangs by a thread even now. The Court has already gone very far in providing special privileges for the religious.

II. The Proper Understanding of Church/State Separation: Equality for Everyone

Since 1947, the Court has had a minimum five-vote majority affirming that no branch of government can favor religious belief over nonbelief. While there have been a number of decisions upholding the special privileging of religion that have been inconsistent with the principle of full equality for nonbelievers, there always were at least five justices who would explicitly state that government cannot generally favor religious views over nonreligious views. In this regard, Kennedy was always among our five.

This is a typical example of how the Court has up to now affirmed the constitutional equality of nonbelievers: "We repeat and again reaffirm that neither a State nor the Federal Government can constitutionally force a person to 'profess a belief or disbelief in any religion.' Neither can constitutionally pass laws or impose requirements which aid all religions as against nonbelievers." Torcaso v. Watkins, 367 U.S. 488, 495 (1961). This benevolent view, which is the historically correct interpretation of the religion clauses of the First Amendment, has the advantage of including everyone—believers and nonbelievers—as equals in the protective embrace of the Constitution of the United States. The opposing view—which is still currently a minority view—insists that all levels of government can openly favor belief over nonbelief. This means that the government can officially declare theism to be preferable to atheism.

III. Government Favoritism for Religion Under a New Majority: How Far Could a Newly Oppressive Government Go in Giving Believers Greater Rights than Nonbelievers?

A frightening glimpse of this looming new majority view was set forth by the late Justice Antonin Scalia in what was, luckily, still a dissenting opinion: "Besides appealing to the demonstrably false principle that the government cannot favor religion over irreligion, today's opinion suggests that the posting of the Ten Commandments violates the principle that the government cannot favor one religion over another.... It is entirely clear from our Nation's historical practices that the Establishment Clause permits this disregard of polytheists and believers in unconcerned deities, just as it permits the disregard of devout atheists." McCreary County v. American Civil Liberties Union of Ky., 545 US 844, 893 (2005). What does it mean to say that "the Establishment Clause permits the disregard of devout atheists?" How far would a new majority of justices who harbor such a view allow this "disregard" to go? Would they allow lending institutions to no longer make loans to anyone who does not affirm a belief in God? Would they allow states to pass laws prohibiting anyone who does not acknowledge belief in God from testifying in court? If government could now favor "religion over irreligion," what are the specific legal rights guaranteed to the religious that no longer had to be equally guaranteed to atheists?

Scalia also included "polytheists" and "believers in unconcerned deities" among those that he claimed the Establishment Clause permits the government to disregard. This would mean that government could disfavor those who adhere to various Buddhist or Hindu sects. Government could also disfavor "believers in unconcerned deities" such as deists, who (like Thomas Jefferson) believe in a deity that created the universe and then took an eternal coffee break. Scalia's insistence that the Constitution permits the disregard of people based on what they believe about a supernatural being or beings would leave open-ended the degree to which such discrimination could be extended to limit the rights of those who do not believe in a monotheistic deity.

IV. Kavanaugh Approves of Eroding Church/State Separation and Privileging Religion

We have compelling reasons to fear that Kavanaugh will provide the fifth vote to decimate church/state separation in ways that Kennedy never did, nor ever would have.

In a 2017 speech[1] Kavanaugh praised the efforts of former Chief Justice William Rehnquist to undo a "strict wall of separation between church and state." Kavanaugh approved of Rehnquist's characterization of the "wall" as "based on bad history." Rehnquist's statements were contained in a dissent in Wallace v. Jaffree, 472 U.S. 38 (1985). In this case a majority of the Court struck down an Alabama statute that required a moment of silence in public schools because the legislative history revealed that legislators really wanted to reintroduce public school prayer. It's frightening that Kavanaugh endorses a dissent that approves of early 19th-century Supreme Court Justice Joseph Story's contention that "Christianity ought to receive encouragement from the state," 472 U.S. at 104. Kavanaugh's speech also praised Rehnquist's legacy for bringing about the decision in Town of Greece v. Galloway, 134 S.Ct. 1811 (2014), which upheld the practice of formal prayer at local government meetings.

V. Kavanaugh Believes Neutrality between Belief and Nonbelief Shows Hostility to Religion

When nonbelievers challenged sectarian prayers at presidential inaugurations, the majority opinion didn't address any substantive issues, upholding dismissal of the case on the grounds that it was moot and because the plaintiff was held to lack standing to sue. However, Kavanaugh authored a concurring opinion explicitly arguing for the constitutionality of the prayers. He wrote: "[S]tripping government ceremonies of any references to God or religious expression would reflect unwarranted hostility to religion and would, in effect, 'establish' atheism." Newdow v. Roberts, 603 F.3d 1002, 1016 (D.C. Cir. 2010). This is a horrendously prejudicial view toward atheism for a potential Supreme Court justice. By Kavanaugh's reasoning, we could just as well assert that "stripping government ceremonies of any references to" a godless, naturalistic universe would reflect unwarranted hostility to atheism and, in effect "establish" religion. Ominously, Kavanaugh has completely ignored the issue of equality between believers and nonbelievers.

VI. Kavanaugh Led a Majority of His Court in Allowing the Navy to Favor Catholic Chaplains Over Protestant Chaplains, Even if Greater Retirement Benefits were Actually Provided to Catholic Clergy

Kavanaugh wrote the majority opinion in In re Navy Chaplaincy; Chaplaincy of Full Gospel Churches, et al., v. United States Navy, et al., 534 F.3d 756 (2008). An organization of Protestant chaplains sued the Navy alleging preferential retirement benefits provided only to Catholic chaplains. Kavanaugh took the position that even if the claims of such overt religious preferentialism on the part of the Navy were true, the plaintiffs still had no standing to bring the case forward unless they could show direct injury to themselves, 534 F.3d at 760. He wrote that even if the Navy were conveying a message of second-class citizenship to Protestants in general, these plaintiffs didn't suffer sufficient injury to have standing to sue. According to Kavanaugh, then, even such a stark display of religious favoritism by the military was not actionable in this case.

In dissent, Judge Judith Rogers wrote that everyone who is left out of being part of the preferred belief system has a liberty interest, sufficient to confer standing, in seeing to it that government does not engage in religious preferentialism, 534 F.3d at 765. Kavanaugh would provide the fifth vote on the Supreme Court to allow government to favor "religion over irreligion." Would he also vote to allow government to prefer one religion over others?

VII. Kavanaugh Would Exempt Religious Claimants from Complying with Laws that are Otherwise Applicable to Everyone as Long as their Religious Beliefs are Sincerely Held

Under the Affordable Care Act, regulations were issued so that some employers with religious objections could opt out of the otherwise universally applicable mandate that employers provide insurance coverage for contraception. Such religious employers were required to file a form alerting either the government or the insurer that they would not provide coverage for contraception. Once in receipt of such notification, the insurer has to provide this coverage directly to employees under a separate plan. In Priests for Life v. United States HHS, 808 F.3d 1 (D.C. Cir. 2015), an organization of Catholic priests who oppose abortion and contraception wanted to opt out of even this minimal notification provision. They claimed that to file either form with the federal government or with the insurer made them participate in a process whereby employees would ultimately obtain insurance coverage for contraception. The Court of Appeals for the District of Columbia, sitting en banc—that is, with all of the judges on the court participating in the decision—ruled against these priests.

Out of twelve judges, Kavanaugh was one of three dissenters. He wrote that as long as employers sincerely believe that a course of conduct violates their religious beliefs, the government cannot inquire any further and must not force compliance even with something as minimal as filling out one of two forms, 808 F. 3d at 56. Kavanaugh maintains that once the priests merely say that they sincerely believe that giving such notice makes them participate in a process that will result in their employees still being able to obtain insurance coverage for contraception, they should be exempt from even this bare minimum notice requirement.

Such religious claimants behave like spoiled brats throwing a tantrum in the sandbox. They are not satisfied with being able to opt out of providing contraception coverage for their employees, which is already an enormous concession that they enjoy. They don't even want to have to notify anyone of their decision so that they can further hamper the effort by these employees to obtain such coverage on their own. With enablers like Kavanaugh, our legal system is in danger of giving the religious exclusive rights to disobey laws that are binding on everyone else.

VIII. Kavanaugh Would Allow Student-Led Prayer to Become an Official Part of School Functions

In Santa Fe Independent School District v. Doe, 530 U.S. 290 (2000), the Supreme Court struck down, by a 6-to-3 majority, a policy whereby a school district allowed student-initiated and student-led prayer as a formal ceremony before the start of high school football games. The majority rightly saw this use of students as a subterfuge to promote school-sponsored prayer, 530 U.S. at 308. Kavanaugh authored an amicus brief in which he argued that these prayers are constitutional.[2] The football games played by students were a function of the public school. The prayers that preceded the game were part of the overall event that the school was putting on. Yet Kavanaugh referred to these prayers as "private religious speech,"[3] thus ignoring that the prayers were an integral component of a public school function. The student-led nature of the prayers was a smokescreen. It would be like a group of students praying over the loudspeaker at the start of the school day and then having the school district claim that this was not formal school prayer because the students doing the praying were doing so on their own. In the meantime, other students—like the attendees at football games—would have to listen to these prayers. When given the chance, the eagerness of religious students to commandeer a school facility or function in order to promote their religious views does not prevent such prayer from being an unconstitutional use of public schools.

Kennedy was part of the majority in declaring unconstitutional the prayers that Kavanaugh defended. Again, Kennedy was much more supportive of church/state separation than Kavanaugh has been.

IX. Kavanaugh Would Allow Religious Groups to Proselytize Elementary School Children on School Grounds as Soon as the School Day Ends

In Good News Club v. Milford Central School, 533 U.S. 98 (2001), the Court held that a private Christian proselytizing organization had the right to enter public elementary school grounds, after hours, to conduct prayer meetings that seek to convert children to Christianity. A child's attendance was voluntarily. Dissenting, Justice David Souter argued that the timing and format of the Good News Club gatherings likely conveyed to young children that these proselytizing meetings had the endorsement of the school itself. Only elementary school children could attend the meetings, and they began so soon after the close of regular school activities that children could easily get the impression that these gatherings were part of the official school day, 533 U.S. at 144.

Kavanaugh authored an amicus brief in support of the Good News Club, arguing that it had a right to conduct meetings on public elementary school grounds.[4] He wrote that the Constitution does not require and does not permit discrimination against religious people and religious speech.[5] Kavanaugh again misses the point. The issue is not discrimination against private persons who want to express their religious views. The goal is to prevent public school property and public school events from being used for proselytizing and worship in a manner that involves public schools in promoting religious beliefs.

X. Contrast with Kennedy on LGBTQ Rights

Kennedy authored the majority opinion in all three of the most important LGBTQ rights cases that the Court has decided. These cases fall squarely within the sphere of church/state separation. There has never been a question of equal rights in this regard in which the religious right was not on the side of denying the freedoms being sought.

In Romer v. Evans, 517 U.S. 620 (1996), Kennedy wrote the majority decision in striking down an amendment to the Colorado Constitution that prohibited any action by any branch of the state's government designed to protect members of the LGBTQ community, and that also repealed all local laws designed to provide such protection against discrimination. 517 U.S. at 624. Kennedy said that the singling out of members of this community, and such people alone, for the deprivation of rights to seek redress and to stop discrimination violated equal protection: "It is not within our constitutional tradition to enact laws of this sort. Central both to the idea of the rule of law and to our own Constitution's guarantee of equal protection is the principle that government and each of its parts remain open on impartial terms to all who seek its assistance." 517 U.S. at 633.

Dissenting, Scalia, joined by Rehnquist and Justice Clarence Thomas, claimed that this amendment should have been upheld. He called it "rather a modest attempt by seemingly tolerant Coloradans to preserve traditional sexual mores." Scalia also said that it is wrong to hold that government cannot single out members of the LGBT community for "disfavorable treatment." 517 U.S. at 636. The danger that Kavanaugh would side with Scalia's view over that of Kennedy, as Kennedy's successor, is alarming.

In Lawrence v. Texas, 539 U.S. 558 (2003), Kennedy wrote the majority opinion striking down a Texas law and, by extension, all remaining laws in the United States that still criminalized private consensual sex involving persons of the same gender. With respect to adults of the same gender who engage in consensual sex with each other, Kennedy said: "The State cannot demean their existence or control their destiny by making their private sexual conduct a crime." 539 U.S. at 578. This was so even if a majority of the population of a state relied on their "religious beliefs ... and respect for the traditional family," 539 U.S. at 571, as a motive for imposing such criminal penalties.

There were three dissenters: Rehnquist, Scalia, and Thomas. Scalia believed that the people of each state have the right to protect "themselves and their families from a lifestyle that they believe to be immoral and destructive," 539 U.S. at 602, even if it means imposing criminal penalties on what consenting adults of the same sex do with each other in the privacy of their homes. We should be extremely worried about how Kavanaugh would have voted in this case, and how he would vote if he is confirmed and the issue comes back to the Court.

In Obergefell v. Hodges, 135 S.Ct. 2484 (2015), Kennedy wrote the majority opinion, for a 5-to-4 majority of the Court, striking down all existing prohibitions against same-sex marriage. Kennedy stated that people have a right to personally oppose same-sex marriage based on their religious beliefs. "But when that sincere, personal opposition becomes enacted law and public policy, the necessary consequence is to put the imprimatur of the State itself on an exclusion that soon demeans or stigmatizes those whose own liberty is then denied." 135 S.Ct. at 2602. Kennedy rejected the argument that rights, such as those of persons of the same gender to marry each other, can be curtailed by popular majorities. "An individual can invoke a right to constitutional protection ... even if the broader public disagrees and even if the legislature refuses to act." 135 S.Ct. at 2605. Kennedy wrote that the right of same-sex couples to marry is protected by the Constitution, and that this right is not dependent upon the democratic process. 135 S.Ct. at 2606.

Dissenting, Chief Justice John Roberts thoroughly disagreed with the majority's invocation of the Constitution to protect members of the LGBTQ community from being deprived of full legal marriage equality. He would have allowed no constitutional protection for same-sex couples in this regard, but would have allowed their fate to be determined by "the people acting through their elected representatives." 135 S.Ct. at 2613. If an overwhelming majority of people in a given state persuaded the legislature to ban same-sex marriage, and the primary motive on the part of this state's majority population turned out to be religion-based anti-LGBTQ beliefs, the current Chief Justice of the United States would still not overrule the legislature's decision to yield to this majority sentiment against same-sex marriage.

Dissenting, Scalia wrote that the majority's determination that there is a constitutional right for same-sex couples to marry is a "threat to American democracy." 135 S.Ct. at 2626. He also lamented that a Court that was not really representative of the people of the United States was imposing this decision from on high. Among the factors that Scalia pointed to in arguing that the Court was so unrepresentative of the populace was the fact that not a single justice on the Court was an "evangelical Christian," though evangelicals comprise "one quarter of Americans." 135 S.Ct. at 2628.

There has never been any justice on the Court who held Kavanaugh's views disfavoring the separation of government and religion who still supported LGBTQ rights. While we cannot predict with absolute certainty how Kavanaugh would vote if the Court revisited the outcomes in Romer, Lawrence, and Obergefell, all of the familiar predictive models cast a shadow over whether he would vote to uphold these precedents.

XI. Kennedy's Stellar Church/State Separation Majority Opinion

We have already seen a substantial difference between Kennedy's voting to strike down prayers that are part of a public school function, and Kavanaugh's support for such prayers.

Kennedy's majority opinion in Lee v. Weisman, 505 U.S. 577 (1992) found unconstitutional nonsectarian prayers delivered by invited clergy as an official part of public school graduation ceremonies. He wrote that "religious beliefs and religious expressions" cannot be "proscribed or prescribed by the state." 505 U.S. at 589. Kennedy then spoke to the heart of the matter. He appropriately pointed out that the religion clauses of the Constitution "define the protection granted to an objector or a dissenting nonbeliever." 505 U.S. at 589. He then further said "these same Clauses exist to protect religion from government interference." 505 U.S. at 589-590. Kennedy not only demonstrated his understanding that the First Amendment was designed so that believers and nonbelievers would be equal before the law, but also demonstrated his ability to craft an opinion, expressing this understanding, that became the majority decision in this case.

XII. Contrast with Kennedy on Climate Change

You are now reading a call to oppose Kavanaugh's nomination because of his demonstrated hostility to government neutrality in matters of religion, and his clear favoring of a legal system that specially privileges religion. In this context the issue of climate change may initially appear out of place. However, to the extent that opposition to dealing with global warming as a serious problem is interwoven with the antiscience agenda of the religious right, an examination of Kavanaugh's record in this regard is relevant to our assessment of his views on dealing with an issue that the scientific/empirical method has shown to be an urgent problem confronting the world.

In Massachusetts v. EPA, 549 U.S. 497 (2007), a number of states sued the Environmental Protection Agency (EPA) in order to force this branch of the federal government to regulate the emission of carbon dioxide and other greenhouse gases as pollutants. The EPA resisted getting involved with such regulation, claiming that since greenhouse gas emissions inflict such widespread harm, any individual state would have to show specific harm to itself in order to have standing to bring this type of lawsuit, 549 U.S. at 517. By a split 5-to-4 majority, the Court ruled that the harm, for instance, to Massachusetts' coastal property that global warming can cause is sufficient to give that state standing to bring a lawsuit requiring the responsible agency of the national government to act to curtail the emission of pollutants that contribute to climate change, 549 U.S. at 539.

The majority would not let the EPA, then under the George W. Bush Administration, avoid dealing with the issue of climate change. "In short, EPA has offered no reasoned explanation for its refusal to decide whether greenhouse gases cause or contribute to climate change." 549 U.S. at 534. Dissenting, Roberts wrote that the states should not have been permitted to successfully sue to force the EPA to regulate these pollutants because global warming is "harmful to humanity at large." 549 U.S. at 541. The Chief Justice would deny an individual state standing to sue even in light of the damage that climate change is doing, or will do, to that state's environment.

Kennedy provided the fifth vote so that the states could compel the EPA to regulate pollutants that cause global warming. Kavanaugh has already demonstrated his willingness to obstruct government efforts to combat climate change.

In Mexichem Fluor, Inc. v. EPA, 866 F.3d 451, 454 (2017), Kavanaugh wrote the majority opinion, in a split 2-to-1 decision, holding that the EPA, under the Obama Administration, did not have statutory authority to issue a 2015 rule regulating the use of hydrofluorocarbons (HFCs). Kavanaugh, taking a very cramped view, wrote that Title VI of the Clean Air Act only permitted the EPA to regulate ozone-depleting substances and not HFCs, even if the latter are clearly greenhouse gases that trap heat in the atmosphere, 866 F.3d at 455. Joining Kavanaugh to make this the majority view was Judge Janice Rogers Brown, who once condemned the secular worldview in a speech by saying: "Contrary to the prevailing secularist dogma ... a society cannot exist without a fighting faith."[6]

Dissenting, Judge Robert L. Wilkins pointed out that the majority opinion "contradicts Congress' intent that the EPA prohibit the use of 'any substitute substance' that may 'present adverse effects to human health and the environment' where a less risky substitute is available." 866 F.3d at 468. Since HFCs contribute to global warming, the EPA is supposed to prohibit their use, as well as prohibiting the use of ozone-depleting substances.

Kavanaugh reveals a frightening approach to judicial decision-making that shows overt favoritism for religion and obstructs government agencies from effectively dealing with the scientifically established threat of climate change.

XIII. We Must Urge the U.S. Senate to Reject Kavanaugh. We are at Risk of Losing Constitutional Protection for Equality between Believers and Nonbelievers

We don't yet know how far a new Court majority, with Kavanaugh providing the fifth crucial vote, will go in allowing government to now favor "religion over irreligion." We church/state separationists are the magnanimous ones in this struggle. We strive for the full legal equality of everyone, regardless of viewpoint on matters of religion. Our opponents want an America that provides special privileges for only the religious. The danger that a new Court majority will permit government to favor religion over atheism is the most imminent threat to a constitutional system that has up to now benevolently protected everyone's freedom of conscience.

Please immediately contact your two United States senators and urge them to vote against Kavanaugh. Urge everyone you know in other states to contact their senators, too. Kavanaugh is a clear and present danger to the separation of church and state.

Notes

[1] Judge Brett M. Kavanaugh, From the Bench: The Constitutional Statesmanship of Chief Justice William Rehnquist. 2017 Walter Berns Constitutional Day Lecture (September 18, 2017). (Washington, DC: American Enterprise Institute, 2017), pp. 12-13. <http://www.aei.org/wp-content/uploads/2017/12/From-the-Bench.pdf>

[2] Brief of Amicus Curiae Congressman Steve Largent and Congressman J. C. Watts in Support of Petitioner. <https://www.au.org/sites/default/files/2018-07/Santa Fe Independent School Dist v Doe amicus brief.pdf>.

[3] Ibid., p. 30.

[4] Brief of Amicus Curiae Sally Campbell in Support of Petitioners, <https://www.findlawimages.com/efile/supreme/briefs/99-2036/99-2036fo7.pdf>.

[5] Ibid., p. 23.

[6] "Janice Rogers Brown Warns Critics of Religious Right Seek 'Permanent Revolution' of Secular Humanism" (March 30, 2007). Right Wing Watch. <http://www.rightwingwatch.org/post/janice-rogers-brown-warns-critics-of-religious-right-seek-permanent-revolution-of-secular-humanism/>.


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Published:
  2018-08-28

Categories:
  Activism, Atheism, Church and State, Politics, Religious Right

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